FIVE JUDGE FEDERAL COURT PANEL RULES INDEFINITE DETENTION VIOLATES DETAINEES’ CONSTITUTIONAL RIGHTS

Facing over 100 pending habeas corpus petitions filed by immigrants in long-term INS detention, five federal court judges in Washington State made the unusual move of releasing a joint opinion. They determined that the INS practice of continuing detention of people whose countries of origin will not accept them violates their constitutional rights. Other federal judges have reached the same conclusion, but this is the first time more than one judge signed on to the same opinion. The opinion contains extensive analysis and unhesitatingly declares indefinite detention unconstitutional.

According to this five-judge panel, indefinite detention violates both substantive due process and procedural due process. Substantive due process is that principle of US constitutional law that prevents government infringement of certain fundamental rights. Among these fundamental rights is the right to be free from arbitrary restraints on liberty. The only power the INS possesses to order a person detained is incident to its power to deport. Because in these cases deportation was unlikely to occur, indefinite detention is clearly unconstitutional. Furthermore, even when the INS did review the cases of long-term detainees, the judges found the review to be inadequate to satisfy the requirements of procedural due process. Rather than make an individualized determination of dangerousness and flight risk, the INS would merely assume that because the person had a criminal history and was facing deportation they constituted both a danger and a flight risk.

While the opinion is binding only in western Washington State, it could be very influential on other judges dealing with habeas corpus petitions filed by long-term detainees. Approximately 120 detainees in Washington may benefit from the ruling.

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